Corporate Criminal Responsibility: A Comparative Analysis

Abstract

AbstractThis article focuses on the extent of a company's responsibility for the criminal conduct of its employees. It considers the initial reluctance of common law courts to hold corporations criminally responsible for offences requiring mens rea, a mental element not found in artificial persons. The courts overcame this initial difficulty with recourse to the identification doctrine, which seeks to attribute to a company the fault of certain of its officers. However, the restrictiveness and inconsistencies embodied in the various judicial statements of that doctrine precipitated recourse in some jurisdictions to civil law concepts, such as respondeat superior, vicarious liability and even strict liability, to found corporate criminal responsibility. The need to streamline the scope of, if not enhance, corporate criminal liability, has engendered statutory reforms in some jurisdictions. The article considers reforms in Australia, the UK, Canada and the USA, in comparison with the situation in South Africa and Lesotho.